Consensual relationships under false pretenses of marriage do not equate to rape; absence of evidence supporting non-consent leads to acquittal.

JUDGMENT :

Narendra Kumar Vyas, J.

1. The appellant has filed present criminal appeal under Section 374(2) of the Criminal Procedure Code against judgment of conviction and order of sentence dated 23.08.2005 passed by learned Sessions Judge, Ambikapur, District Surguja (C.G.) in Sessions Trial No. 456/2004 whereby the appellant has been convicted and sentenced in the following manner:-

2. Case of the prosecution, in brief, is that the complainant lodged a report on 17.12.2003 before the Police Station Ambikapur, District -Surguja bearing Crime No. 103 of 2003 (Ex. P/5) which has been subsequently transferred to the Police Station Dhaurpur bearing Crime No. 153 of 2003 (Ex. P/17) by the victim alleging that she was student of Class 12^th and was residing in rental house of Dukhna at Dhaurpur and the appellant who was also studying started living with the victim in the same house. She has further stated that on 08.09.2000, the appellant alluring her for marriage has committed illegal act with her and after completion of study both of them have left for their respective houses on their destination place. They have mutually settled the time to meet on 15^th and 31^st of the month and she remained in the house of the appellant for one week where he was keeping her as a wife. She has further stated that the accused on the pretext of marriage committed rape on her. She has further stated that on 16.05.2003, when she has again visited his house and stayed at night then she told him for marriage and remained in his house on 09.06.2003 and 10.06.2003, thereafter, he has gone somewhere on 11.06.2003, thereafter, he has gone somewhere else. It is also contended that she remained in his house for 2 months, but he has not returned back. She has further stated that the accused has committed rape on her on the pretext of marriage. He has continuously committed rape with her from 08.09.2000 to 14.04.2003. On the basis of FIR, offence under Section 376 of IPC was registered against the appellant.

3. The prosecution after usual investigation has submitted charge-sheet before the learned Judicial Magistrate Ambikapur who has committed the criminal case for trial before the learned District and Sessions Judge Surguja, Ambikapur registered as Sessions Trial No. ST-456/2004.

4. The prosecution to bring home guilt of the accused has placed on record the documents namely report of medical examination of victim (Ex. P/1), sealed slide (Ex. P/2), farari Panchnama (Ex. P/3), statement of Paltan Ram (Ex. P/4), FIR (Ex. P/5), consent letter (Ex. P/6), najri naksha (Ex. P/7), statement of Pakri Parhin (Ex. P/8), statement of Ramadhin (Ex. P/9), statement of Taramani (Ex. P/10), Crime Details Form (Ex. P/11), acknowledgment of charge-sheet (Ex. P/12), memo regarding F.S.L. of seized articles (Ex. P/13), F.S.L. report (Ex. P/14), permission regarding medical examination of victim (Ex. P/15), application to the Medical Officer for medical examination of victim (Ex. P/16) and FIR (Ex. P/17). The prosecution examined 17 witnesses namely Smt. Nirmala Kashyap (PW-01), Somaru (PW-02), Paltan Ram (PW-03), victim (PW-04), Bigo Bai (PW-05), Dukhna Ram (PW-06), Dhaniya @ Pakriparhin (PW-07), Ram Adhin (PW-08), Smt. Piyaro Bai (PW-09) Smt. Pahuni Bai (PW-10), Dr. Smt. Pratibha Rahul Jain (PW- 11), Ku. Taramani Tirkey (PW-12), Somar Sai (PW-13), B. Ekka, Sub Inspector (PW-14), Dhirendra Singh (PW-15), K.K. Bhagat (PW-16) and Suresh Chandra Minj, Head Constable (PW-17).

5. The accused to prove his innocence has exhibited documents namely statement of victim (Ex. D/1), statement of Bigo Ba